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DeWolfe v Richmond

Case No. 34 (MD Ct. App., Jan. 4, 2012)

When an individual is arrested, he or she must go before a judicial officer for an initial appearance, pursuant to Maryland Rule 4-213(a). The judicial officer, who in all instances relevant to the matter sub judice is a District Court Commissioner (“Commissioner”), has a number of duties at the initial appearance, among which is to comply with the pretrial release provisions of Maryland Rule 4-216. That rule requires the Commissioner to determine whether there was probable cause for the arrest and, if so, whether the defendant should be released on his or her own recognizance, on bail, or not at all.

We are asked in this appeal whether an indigent defendant is entitled to appointed counsel when a Commissioner makes the Rule 4-216 bail determination. We hold, for the reasons that follow, that an indigent defendant is entitled to such representation, under Maryland’s Public Defender statute, Maryland Code (2001, 2008 Repl. Vol.), §§ 16-101 through 16-403 of the Criminal Procedure Article (hereafter “Public Defender Act” or “Act”).

I.



This case comes to us from the decision of the Circuit Court for Baltimore City granting summary judgment for the Plaintiffs, entering a declaratory judgment, and denying the Plaintiffs’ request for an injunction to enforce the rights declared. The Plaintiffs sought a declaration that they and the class of indigent persons they represent have the right, under the federal and state constitutions and the Public Defender Act, to be represented by the Public Defender at bail hearings, which are conducted as part of the initial appearance before Commissioners at the Baltimore City Booking and Intake Center (“Central Booking Jail”). To assist in understanding the parties’ respective arguments and the issues we must decide, we describe at the outset what occurs at the initial appearance before the Commissioner.
 

 

Judge(s): Mary Barbera
Jurisdiction: Maryland Court of Appeals
Related Categories: Constitutional Law
 
Court of Appeals Judge(s)
Sally Adkins
Mary Barbera
Lynne Battaglia
Robert Bell
John Eldridge
Clayton Greene, Jr.
Glenn Harrell, Jr.

 

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in its order denying relief a proviso stating that, "[t]o the extent plaintiffs may require -23- of a proceeding listed in paragraph (1) of this subsection , including, in criminal[8] id. at 17-18 (citation omitted). 10% fee to regain their freedom." the plaintiffs also note that an unrepresented person, in broader than the constitutional right to counsel." id. at 713-14, 770 a.2d at 200 (internal procedure "governing post-arrest and pre-trial procedures." the district court defendants claims," but the court should not order representation absent funding, and he asked the court the plaintiffs' concerns are not unwarranted. in fenner, the defendant appeared21 be afforded "in all stages of a proceeding listed in paragraph [(b)](1)," and we have liberty, even if only for a brief time. furthermore, the likelihood that the commissioner will a courtroom. according to the plaintiffs, the initial appearance is not open to the public and superseded on other grounds by 2011 md. laws, ch. 244. asserted that the denial of injunctive relief would not erect a res judicata bar and c.j. § 3-412 to seek injunctive relief in the future or by failing to order an injunction that determination is a "stage" of that proceeding. doubtless it is. the opd has "time to secure adequate resources to provide effective representation at initial injunctive relief from the public defender, specifically requesting the court to "[e]nter[] an for summary judgment. the circuit court issued an order staying the decision pending relief should not be granted. public defender when filing a motion to modify a sentence that was imposed at a probation counsel. id. at 219. the court allowed the claims to proceed notwithstanding that plaintiffs, understandably, seek to clarify their entitlement to enforce their rights by seeking commissioners "are not required to give miranda warnings and thus do not." when or the community; our holding that there is an entitlement to public defender representation at the subsequent a.2d at 196. we held that the public defender act bestows such a right to counsel at the defender act at lineups conducted before the initiation of adversary proceedings, although 4-213(a); see c.j. § 2-607(c)(1)­(2). the pretrial release provisions of rule 4-216 require the district court defendants have moved to dismiss the plaintiffs' cross-appeal. constitutional law, consideration should be given to the ramification that the legislature and baltimore city, a stay be granted of the enforcement of the right declared in this case so that purposes of the sixth amendment. id. at 4, 846 a.2d at 1022. we did not address, however, we note, in connection with our holding today, that "this court has held, on equal25 (f) anyinformation presented bythe defendant or defendant's counsel; -3- cert. denied, 522 u.s. 1017 (1997). harris involved whether a court could appoint standby to public defender representation at the initial bail hearing. in further support of that city, or a panel attorney to represent indigent defendants at initial bail hearings and -3- they also argue that, under the circumstances of this case, we must decide the issue they reflecting on one point a rigiditythat i find unacceptable (see majorityslip op. at 29- extending representation to "all stages of a proceeding," rule 4-214(b) does not extend as proceedings. it would be nonsensical, and contrary to the plain language of § 16- the majority slip opinion, at 29-33, analyzes only the opd's request for further2 -22- exhibited in order to obtain evidence that he is the criminal agent, is within the ambit of the who, of course, is in custody at the time." id. at 603-04, 474 a.2d at 1317. therefore, (alito, j., concurring) ("i do not understand [the court's opinion] to hold that a defendant uncertainty about whether the notice they filed on november 1, 2010, is effective in light of commitment of an individual in a public or private institution may (d) any recommendation of an agency that conducts pretrial release lowered bail for one in four individuals (27%). in nearly half the cases, judges maintained the sixth amendment to the constitution of the united states provides: "in all9 the act outlines the scope of representation by the public defender and lists in subsection of the district court of maryland, the coordinator of commissioner activity for the upon persons not before them, can hardly permit the legal rights of litigants to 204(b)(1)(iv), to construe that provision as excluding indigent persons who are not charged initial bail determinations. appeals. it is unclear whether the majority believes that it lacks discretion to grant relief to the the district court defendants assert that, despite the language of § 16-204(b) of the act the prior bail conditions. it was relatively rare for a judge to increase the amount." report commissioners"askaboutresidence,employment,family,communityties,priorrecord,and, notwithstanding that a lineup that occurs before formal accusation "is not encompassed -4- egypt, said: underpinnings, which in their view demonstrate that the initial bail hearing is not a critical relief because the plaintiffs' complaint initiallysought both declaratoryand injunctive relief. we conclude that the plaintiffs have the better part of the argument. it is plain to us, related question presented by the public defender's cross-petition, we hold that the circuit and therefore do not come within the ambit of § 16-204(b)(1)(i), do come within the reach we emphasize that district court judges owe no deference to the commissioners'22 commissioners impose bail "preset" by the district court in absentia? perhaps, particularly in a time of scarcity, some reordering of legislative far. they ask us to read the act and its legislative history in conjunction with rule 4-214(b) before commissioners throughout maryland. that is to say, no bail determination can be bail review proceedings, that "most judicial officers decide whether to order release on encourage the entryof counsel earlyincircuitcourtproceedings,thusavoiding at "all stages of a proceeding listed in paragraph (1) of this subsection, including, in set out in section (e) . . . that will reasonably": "ensure the appearance of the defendant as the report also finds, upon surveying district court commissioners and reviewing later, critical stages [of criminal proceedings]." (b)the"proceedingsforwhichrepresentation shallbeprovided." subsection(b)(1)provides, 1130, 1133-34 (2000) (citation omitted)). we further hold, in answer to the plaintiffs' fifth a stage of the criminal proceeding, entitling them to representation under § 16-204(b)(2) of extend a right to counsel prior to the preliminary hearing. satisfied: (1) the parties in the subsequent litigation are the same or in privitywith the parties indictment lineup. we noted at the outset of our discussion on the subject: "it is clear that (out of 12 for district court cases and 10 districts for circuit court 4-213(a) initial bail hearings before a district court commissioner." consequently, the the supreme court described its holding in rothgery as "narrow"; the court did20 -38- v. (vi) a family law proceeding under title 5, subtitle 3, part ii or part iii representation under the act extends beyond the requirements of the sixth amendment. trials." rutherford v. rutherford, 296 md. 347, 358, 464 a.2d 228, 234 (1983) (citing cases). public defender at bail hearings, which are conducted as part of the initial appearance before resources, reputation, character and mental condition, length of residence in proceedings are civil proceedings, and we reasoned that they came within the ambit of what i. ground'") (quoting baltimore sun co. v. mayor of baltimore, 359 md. 653, 659, 755 a.2d 466. we therefore held that flansburg was entitled to have public defender representation determine whether there was probable cause for the arrest and, if so, whether the defendant relief. ­ further relief based on a declaratory judgment or decree maybe granted if necessary (2) antagonistic claims are present between the parties involved which meritorious constitutional and statutory claims that they have a right to counsel at their rule defender unable, within its currently available resources, to provide 6. does the circuit court's denial of [the plaintiffs'] request for an injunction the plaintiffs, not surprisingly, oppose the motion to dismiss. the plaintiffs argue intergovernmental group to develop solutions; (2) bifurcate the case to add a remedy stage, defendant qualified as "indigent" under the public defender statute. judge wilner of the act. unparalleled in maryland jurisprudence. (majority slip op. at 32-33 ­ "moreover, we have proceedings, including but not limited to custody, interrogations, preliminary we describe at the outset what occurs at the initial appearance before the commissioner. defendant. the plaintiffs amended the complaint to add the public defender as a defendant. -7- to the extent available": clarifying orders, as no declaratory judgment had been entered and the plaintiffs' request for district court defendants note, § 16-204(b)(1)(iv) applies to civil commitments and civil of maryland details of the remedy for petitioners' newly-declared right or, in the alternative, a stay, a number of duties at the initial appearance, among which is to comply with the pretrial in light of the uncontested facts presented by the public defender that to a court having jurisdiction to grant the relief. impose on the defendant the least onerous condition or combination of conditions of release adversary proceeding and/or a "critical stage" of a criminal prosecution, as that phrase is opinion by barbera, j. citation omitted.] appeal, sought a ruling on their request for injunctive relief. in requesting, as one option, opposition to motion to dismiss and in support of cross-motion for partial summary district court commissioners; (2) the inappropriateness of res judicata effect on -26- basis at the baltimore city central booking facility. [internal[3] general assembly re-codified the public defender act, without substantive change, as vetting and adoption of those actions is not as instantaneous relatively as the issuance of our public defender system was the supreme court's extension of the right to counsel at a jj. when an individual is arrested, he or she must go before a judicial officer for an initial public defender do not comply with our decision today. the plaintiffs assert that, if res before a commissioner or judge; disability benefits hearings. id. at 11. the court of appeals for the first circuit noted that to ensure that maryland practice conformed to constitutional requirements, to appeal." (alteration by the plaintiffs.) finally, given our holding that § 16-204(b) of the public defender act is plain, there commissioner refused to appoint an attorney and, ultimately, set bail for the plaintiff.14 barbera rothgery's sixth amendment rights." 554 u.s. at 213. that is to say, the court did not solution to the problem of hearing delays may well require congressional public defender representation at "all stages" of the proceedings, and "all means all." the relief in accord with its findings that defendants are violating the class's bail hearings per year, for which the office would have to without prejudice is a final judgment, though it does not have res judicata effect). been part of this court's judgment. revocation proceeding. we observed, as we had in webster, that "the right to counsel under dismiss (treating it as a motion for summary judgment) and granted the plaintiffs' motion dismissal of the cross-appeal. the plaintiffs specifically addressed the issue of res judicata making a supplementary petition, under c.j. § 3-412 . in that letter, the plaintiffs also16 and (3) declining to vacate the declaratory judgment and remanding this matter to the circuit mccarter, 363 md. at 713-14, 770 a.2d at 200, and cases cited therein. section 16-204 of before the commissioner is a "stage" of the criminal proceeding, as that term is employed part of that event--is clearly encompassed within a "criminal proceeding," and may result hearing, pretrial motions and hearings, trial, motions for modification or county, frederick county, harford county, and prince george's county), "released [at the criminal prosecutions, the accused shall enjoythe right . . . to have the assistance of counsel incur a consequential, albeit substantial burden, particularly under the circumstances here, problems or . . . meeting his adversary.'" rothgery v. gillespie county, 554 u.s. 191, 212 bail hearings," to the end of not affecting adverselytheopd'songoingotherresponsibilities. eitherbydenyingtheinjunctionrequestwithoutreserving[theplaintiffs']right the plaintiffs represent the class of "[a]ll indigent persons arrested, detained at4 the legislative history of the public defender act in an effort to uncover aspects of that effort to ensure that the circuit court's declaratory judgment was "final" for purposes of plaintiffs). the plaintiffs further assert that the act was drawn from a montgomery county 25, 320 a.2d 266, 272 (1974) (citing pressman v. d'alesandro, 211 md. 50, 54, 125 a.2d in sum, we hold that the bail hearing that occurs at the initial appearance before a b. declaratory judgment without court-fashioned remedy the initial appearance before the commissioner--including the bail hearing that is ordinance, which provided counsel at bail hearings; therefore, when the general assembly at which the court could join "additional parties, including political actors" responsible for injunctive relief, but opposed the plaintiffs' proposed proviso. they asserted that the maintain the right to seek injunctive relief in the future, pursuant to c.j. § 3-412. the defendant of the charge and allowable penalties; provide the defendant a copy of the at 7, 846 a.2d at 1023. fenner responded with inculpatorystatements, including that his acts statutory language to provide expressly for representation at bail hearings. the earlier dispute. colandrea v. wilde lake cmty. ass'n, inc., 361 md. 371, 389, 761 a.2d without having essential information about the person's employment status, family and defendant of the right to counsel; advise the defendant, when it is relevant, of the right to a the statute, the rules, and the district court were part of an overarching design baltimore city, an attorney from the district office of the public defender for baltimore announced in the act, to "assure the effective assistance and continuity of counsel to -39- affirmative injunction directing the public defender to assign the district public defender for the district court defendants moved to dismiss the complaint on the basis that the -8- 214(b), is not exclusive.23 singleton, timothy wright, keith wilds, michael lagrasse, ralph steele, laura baker, the duties of the commissioner at the initial appearance are governed by maryland section 3-412 of the maryland uniform declaratory judgments act provides:24 2. do indigent defendants have a right to counsel at initial bail hearings under harrell and adkins, jj., concur and bail hearings. address the federal and state constitutional claims presented by the plaintiffs' second, third (i) any other factor bearing on the risk of a wilful failure to appear and they urge a construction of the act, and § 16-204(b) in particular, that depends largely on proposition of law: "[t]he right to counsel under the public defender act is significantly -27- legal assistance to an indigent accused."). (a) the nature and circumstances of the offense charged, the nature of was detained at the central booking jail and, without counsel present, was brought before the plaintiffs urge, moreover, a view of the legislative history of the act that varies representation, out of concern for the financial costs attendant to implementation of that to `trial-like confrontations,' at which counsel would help the accused `in coping with legal and priorities to balance during each annual (or the infrequent special) legislative session. proceedings in the trial court to flesh-out implementation of the remedy; however, the each named plaintiff was arrested for a crime that qualifies as a "serious offense,"12 reasons given by the majority opinion for rejection of that request are claimed to apply with eldridge, john c. (retired, or offense punishable by confinement for more than 3 months or a fine of more than $500"; in their correspondence with the circuit court after the court issued its declaratory judgment 444 a.2d at 1069; cf. office of the pub. defender v. state, 413 md. 411, 427 n. 12, 993 a.2d appellees, as "district court defendants"; and appellees/cross-appellants, as "plaintiffs." proceedingsarticle,entitled"supplementaryrelief,"provides,inpertinentpart: "(a)further write on a clean slate. we have addressed on a number of occasions the applicability vel non (a) further relief. ­ further relief based on a declaratory judgment or several of the named plaintiffs represent the subclass of persons arrested on a14 in construing the extent of the plaintiffs' entitlement under § 16-204(b), we do not history that might (at least in the view of the district court defendants) suggest a legislative § 2-607(b) of the courts and judicial proceedings article. for a discussion of the origins of -24- committed a serious offense; . . . (iv) any other proceeding in which confinement under a negotiations that must occur. although not an apt analogy, we do not wish to foster the sort this court's decision in miller & smith at quercus, llc v. casey pmn, llc, 412 md. 230, where the statutory right to counsel is at issue in a class action suit. to the earlier dispute; (2) the subsequent action presents matters that were, or could have him and his liberty is subject to restriction, marks the start of adversary judicial proceedings defendants counter, as they did in the circuit court, that the public defender act does not provides for representation during the bail-hearing portion of the initial appearance before -32- not supported by probable cause, then the commissioner "shall release the defendant on the district court defendants did not oppose the modification of the order denying the arena of school desegregation. frequently, the charges[,] . . . [a]rrestees are expected to answer. most do, not knowing that representation under then article 27a, § 4(d), now § 16-204(b)(2). id. at 702, 694 a.2d at persistent and severe resource constraints would, absent some further remedy, render it september term, 2011 amend their complaint orally, to add claims for relief against the public defender. the (2001, 2008 repl. vol.), §§ 16-101 through 16-403 of the criminal procedure article recognizance or a financial bail without having essential information about the person's the court of appeals considered whether a complaint challenging the new york state the plaintiffs disagree and assert that the circuit court had the duty to declare their direct us to any maryland authority for such a proposition. theevidence againstthedefendant,andthepotentialsentence uponconviction; criminal proceeding under § 16-204(b) of the public defender act. consequently, if a the lawsuit issued and any such violations occurred. additionally, it is clear from the circuit court's bench warrant for the arrest of a defendant" who has violated his or her terms of release); from seeking further injunctive relief, as provided by c.j. § 3-412, to enforce the rights -31- judge of the court of appeals, and published by the abell foundation. the report, entitled "a delinquent act that would be a serious offense if committed by an adult"; or "an offense theyare entitled to counsel under the sixth amendment to the united states constitution and and fourth questions. see mccarter v. state, 363 md. 705, 712, 770 a.2d 195, 199 (2001) commissioner or arrestee said or to understand the basis for the ruling." moreover, offense might result in incarceration. subsection (b)(1)(iv) provides public defender is that the legislative purpose is to be ascertained, if possible, from the plain language of the commissioners at the baltimore city booking and intake center ("central booking jail"). (continued...) defender representation in such a role, we did not depart from our prior understanding that code (1957, 2003 repl. vol., 2007 supp.), article 27a. effective october 1, 2008, the plaintiffs and hold that they enjoy a right under the public defender act to be represented ensure that arrestees received prompt probable-cause determinations, to central booking jail. a plexiglass wall separates the arrestee and the commissioner, and criminal proceedings, custody, interrogation, preliminary hearing, arraignment, trial, and deferred to the preset bail amount. reasons that follow, that an indigent defendant is entitled to such representation, under implementing today's holding affirming that right. the public defender's asserted defense commissioner to determine whether the defendant is eligible to be, and should be, released made an exception in the case of a mandate as well-established and as essential concurring and dissenting opinion. on his or her recognizance or whether the case requires bail, pending trial. in that process, likely to serve longer detentions or to pay the expense of a bail bondsman's non-refundable to balance additional attorney participation by the opd and security objectives. court, requesting the court to amend the order denying injunctive relief "without prejudice," moreover, in light of this record, there is no merit to the district court defendants' affirmed. costs to be paid by (retired, specially assigned), -14- agreeing that a separate order setting forth the terms of the court's declaratory judgment defendant qualifies for public defender representation, a bail hearing may not occur at the a declaration that they and the class of indigent persons they represent have the right, under4 deny the district court defendants' motion to dismiss and address whether the doctrine of defendants, in response, made clear their position that res judicata would bar subsequent central booking jail. we therefore accept the plaintiffs' description for purposes of this defender act "extends to all stages in the proceedings"; and "`[a]ll' means `all'"; id. at 716, judicial commitment of an individual in a public or private institution may result." as the we have noted the public defender's agreement with the plaintiffs' "forceful, we further hold that indigent defendants who are not charged with a serious offense, circuit court's denial of the plaintiffs' request for injunctive relief does not erect a res we detailed at the outset of this opinion the process bywhich the commissioner must allowed counsel." because "[t]he impetus for enactment of the legislation establishing maryland's statewide bail review hearing] about one of four detainees on personal recognizance (24.5%) and appearance beforethecommissioner. the public defender asserts,however, thatthecircuit public defender," "such a confrontation, arranged by the police, at which a suspect is judicial commitment of an individual in a public or private institution may result." § 16- adversaryprocess requiring the presence of counsel, unless waived by the defendant. see id. 75 (2009) (stating that, upon review of the declaratory judgment entered after a grant of alsoconsideringthepublicdefender's fiscalconcerns andcraftingaremedytoaddressthem, who has assumed representation. if a public defender is not immediatelyavailable to assume which time the defendant purported to waive his right to a jury trial." 363 md. at 707, 770 indigent accused individuals taken into custody and indigent individuals in criminal and or mental capacity of the accused requires representation of the accused by an attorney." governor, having not heretofore provided budgetarily for implementation of this right, must a commissioner for the purpose of determining eligibilityfor pretrial release. each plaintiff representation to indigent criminal defendants at all critical stages of the assistance of counsel from the opd for the bail hearing portion of initial appearances before vehemently opposes immediate enforcement of that right to counsel, pointing to the fiscal -13- c. res judicata and injunctive relief supervise directly volunteer law students in aid of maximizing representation at implicated at 713, 770 a.2d at 199-200. is entitled to the assistance of appointed counsel as soon as his sixth amendment right an effort to obtain release, could make incriminating statements to the commissioner.21 case of the annual budget or supplementary appropriations, the process of formulation, warrant for "failure to appear" that was signed by a district court judge who preset the bail statute at issue. guttman v. wells fargo bank, ___ md. ___, ___, 26 a.3d 856, 860 (2011). asks whether the circuit court's denial of their request for injunctive relief erects a res app. 538, 546-52, 444 a.2d 1058, 1063-67 (1982). 35, 37 (1956)). courts and judicial proceedings article § 3-409 provides, with limited lovell land, inc. v. state highway admin., 408 md. 242, 256, 969 a.2d 284, 292 (2009) establish a res judicata bar against a future request to enjoin future violations -11- -18- instances­the acceptable limit. in 2009, the office was out of the public defender filed a conditional cross-petition for a writ of certiorari, presenting adjudicated by the declaratory judgment or decree, to show cause why further -17- as it was to the circuit court and is to the public defender himself, that the relevant language the named plaintiffs are quinton richmond, jerome jett, glenn callaway, myron12 court for baltimore city on the motion to dismiss, the circuit court recertified the class and invited the plaintiffs to emphasized the court's obligation to uphold the law, "and that obligation is not subject to or of budgetary impracticability, though evidently pertinent in many contexts, is not a proper in the circuit court and, therefore, there would be no final judgment. the district court dismissed if the plaintiffs failed to amend their complaint to assert claims against the public representation in certain areas beyond the reach of that guarantee." id. at 603, 474 a.2d at before a commissioner. moreover, we decline the public defender's request for a stay in court defendants. we point out, though, that to the extent the district court defendants within three years of the date the defendant is charged as an adult. court did not err in issuing its declaration without consideration of the costs attendant to the opd. consideration of the venues in state and local detention facilities, where initial it is unnecessary to respond further to this rule-based assertion by the district23 relevant to the matter sub judice is a district court commissioner ("commissioner") , has1 plain language, § 16-204(b) mandates public defender representation at the bail hearing that public defender act is broader in scope than that granted under the sixth amendment. see17 id., 770 a.2d at 201.19 the stay is lifted." the circuit court issued an amended order entered february 25, 2011, injunctive relief in the event of future violations. the public defender, throughout the theoretically, private lawyers may participate, but, in practice, security are indigent. the plaintiffs report: implementation of a substantive right, much less one that affects indigent defendants' or proper." public defender does not challenge the circuit court's conclusion that the public defender exception not applicable here, our concern that such "further [judicial] proceedings" could become a vehicle of enduring respectivedesignationsinthecircuitcourt: appellant/cross-appellee publicdefenderpaul right to counsel. we do not mean by our holding that the commissioner is foreclosed from all prior convictions and any prior adjudications of delinquency that occurred "[i]t has long been held that a person whose rights are affected bya statute mayobtain (g) the danger of the defendant to the alleged victim, another person, (e) any recommendation of the state's attorney; statutory right to public defender representation, out of concern for the financial costs public defender be unable to provide representation at initial bail hearings. we therefore as the order might not constitute a "final" order for purposes of appellate review. the15 constitutional issue when a case can properly be disposed of on a non-constitutional writing then for the court of special appeals in baldwin v. state, 51 md. app. 538, 555, 444 proceedings, custody, interrogation, preliminaryhearing, arraignment, trial, and appeal"; (2) is defined in the act, are entitled to appointed counsel at the bail hearing. this conclusion 81, 21 a.3d 1063 (2011). the issue was not decided by the lower courts or briefed in the court of appeals, without preliminary hearing." they rely, too, on unsuccessful efforts over the years to amend the18 we vacated the order of the circuit court and remanded the case with the direction that it be based on those rulings, the circuit court denied the district court defendants' motion to cert. denied, 476 u.s. 1186 (1986). plaintiffs'request for injunctive relief. the plaintiffs then sent correspondence to thecircuit moore v. pomory, 329 md. 428, 432, 620 a.2d 323, 325 (1993) (holding that a dismissal without due process of law." article 24 of the maryland declaration of rights provides: (quoting allstate v. state farm, 363 md. 106, 117 n.1, 767 a.2d 831, 837 n.1 (2001)) state in writing or on the record the amount and any terms of the bail." id. -33- "act").2 the public defender act is significantly broader than the constitutional right to counsel." 987 a.2d 1 (2010). we do not opine herein whether the original order denying injunctive legislature and others must do what needs to be done to effectuate the right declared here. t h e d i s t r i c t c o u r t we have said on more than one occasion that the right to counsel provided under the paul dewolfe, jr., et al. the merits of the plaintiffs' request. -34- the commissioner, in those instances when the defendant has been arrested without a in filing the motion to modifythe sentence that had been imposed at the probation revocation court's ruling be affirmed, there could be thousands of initial 1317. questioned whether fenner had "anything [he'd] like to tell [the court] about [himself]." id. whenever the commissioner does not release a defendant following the initial was pending in that court, we issued a writ of certiorari on our initiative. richmond v. dist. they present three arguments for why, in their view, the plaintiffs' claim is not properly denying the plaintiffs' request for injunctive relief, and omitting the proviso requested bythe because the court identifies a statutory right, rather than one grounded in we recognized that a lineup that takes place before formal accusation, though not a if the language of the statute is plain and unambiguous, then our role in determining the not bar future requests for injunctive relief. they pointed directly to c.j. § 3-412, which counsel at initial bail hearings before the commissioner. the public defender, however, does not satisfy either the second or third of these criteria. obviously, the plaintiffs could judicata bar to the plaintiffs' seeking future injunctive relief, as may be necessary to enforce of appeal. the plaintiffs, in turn, filed a timely notice of cross-appeal. webster, 299 md. at 623, 474 a.2d at 1327 (recognizing a right to counsel under the public preliminaryhearing;andcomplywiththepretrialreleaseprovisionsof rule 4-216. md. rule counsel from the office of the public defender for a pro se defendant who validly had right to counsel at initial bail hearings. representation by the office of the public defender at initial bail hearings in baltimore city. 770 a.2d at 201 (quoting former article 27a, § 4(d)). we went so far as to state: "the j., which adkins, j., joins recodification that affect our analysis here. we therefore shall refer to the current version attorney to represent him or her at the initial appearance. on each occasion, the at 32 (footnote omitted). act, to public defender representation at the bail-hearing portion of the initial appearance (...continued)6 be relieved of its essential obligation to provide a remedy for violation of a do so. the legislature meets once a year normally, between january and april. although appearance are held, mayneed to be assessed for new construction or reconstruction in order legislative history to seek out evidence of a contrary intent by the general assembly. id. at the right to counsel declared by the circuit court in its december 2010 order. maryland code (1974, 2006 rep. vol.), §§ 3-401 through 3-415 of the courts and judicial the doctrine of res judicata bars a claim only when three distinct elements are n. 16 (2008) (citations omitted) (omission in original). enacted§16-204(b), it was wellaware of what"allstagesof aproceeding" wouldencompass. judgment of the circuit efforts" initiative, using its existing resources, to represent indigent persons for bail -9- under the public defender act." mccarter, 363 md. at 714, 770 a.2d at 200 (quoting charged with a "serious offense" as that term is defined in the act, see § 16-101 (h)(1)­(4), neitherthedistrictcourt defendants nor the public defender dispute theplaintiffs'6 whether there are actual, concrete, and adverse claims or interests, as provided by c.j. § 3- issues at central booking make private representation rare. in contrast, by declaration, whether "that declaration was correct as a matter of law" (quoting s. easton quinton richmond, et al. of the act is unambiguous and dictates the outcome here. so let it be done. assert that rule 4-214 overrides and narrows the scope of public defender representation, set defendant has a right to counsel at an initial appearance, under maryland rule 4-213(c), at representation by his [or her] own counsel which is equally as broad as an indigent's right united states provides: "[n]or shall anystate deprive anyperson of life, liberty, or property, public defender's fiscal concerns and crafting a remedy to address them. for the same community ties, and ability to afford bail"). we cannot overlook, moreover, the evidence in judge adkins authorizes me to state that she joins the views expressed in this specially assigned), public defender act ­ initial appearance ­the public defender act, maryland code assert: the following question: unable to supply counsel at initial bail hearings while still meeting its constitutional and priorities. but this does not amount to an argument upon which a court might subsection 16-204(b)(2) in turn provides: "representation shall be provided to an indigent indigents, in civil cases or other proceedings not constituting critical stages of criminal disposition of the present case. the parties agree, and we concur, that the initial appearance whether the defendant is to be released on his or her own recognizance or incarcerated until denial of injunctive relief was done with the expressed understanding that they would the public defender filed a response to the cross-motions for summaryjudgment, originally granting summaryjudgment for the plaintiffs, entering a declaratoryjudgment, and denying3 counsel at bail hearings and, in the same breath, permit delay in the implementation of that that a defendant might have bail reduced or eliminated by a district court judge at the record that the commissioner's initial bail decision often is not disturbed by the district when it issued the declaratory judgment in the plaintiffs' favor without also considering the the act reached beyond the demands of the sixth amendment. id. at 499, 687 a.2d at 971. declared in the december 28, 2010 judgment of the circuit court. judicata would bar future requests, then the circuit court erred in denying them injunctive the district court defendants thereafter filed a motion requesting the court to enter statutory mandate is the proper work of the courts, and it would be odd if we compliance with the maryland caseload standards in 11 districts the two communicate through a speaker system. according to the plaintiffs, "public a.2d 1058, 1069 (1982), "it goes without saying that reductions in the public defender's this date was selected because it is the eve of a new state fiscal year, by which time5 at 977 (quoting webster, 299 md. at 603, 474 a.2d at 1316 (quoting former art. 27a § 1, appearance, the defendant is presented to a district court judge for a bail review hearing specific types of proceedings listed in the statute . . . are for purposes of illustration only." important right and thereby countenance violations of it, even for a brief time. funding or exercise its "inherent power" to compel funding; (3) issue an injunction with juvenile proceedings before the courts of the state of maryland . . . ."'" id. at 512, 687 a.2d the plaintiffs further report that, because the initial hearings are "not open to the finally, the court ruled that, "by denying plaintiffs and those similarly situated any in: mccarter, much like webster and flansburg preceding it, directs us to the proper we have held consistently that, additional language would create the impression that the parties contemplated further action counsel could proceed. id. at 219. the complainants argued that the delegation amounted bell, c.j., code (1974, 2006 rep. vol., 2010 supp.), § 2-607(c) of the courts and judicial proceedings should be released on his or her own recognizance, on bail, or not at all. (3) a party asserts a legal relation, status, right, or privilege and this is and practical impediments his office would encounter in its efforts to comply with the the plaintiffs then filed a petition for a writ of certiorari seeking this court's -25- defendants also took the position that res judicata would apply to future requests for supplemental appropriations to an annually adopted state budget are possible, in either the bell, c.j., the tasks confronting implementation of the court's holding are not limited to the flight to avoid prosecution or failure to appear at court proceedings; 204(b)(1). assertion that the plaintiffs are not aggrieved because they proposed the denial of their sought a declaratory judgment that: (1) the initial bail hearing before the commissioner is md. rule 4-216(f). the plaintiffs also inform us that, when a warrant is served with a court. defendant's initial appearance before a judicial officer, where he learns the charge against subsequently, in state v. flansburg, 345 md. 694, 697, 694 a.2d 462, 463-64 (1997), statutory and constitutional rights? "seems appropriate." the public defender disagreed, however, that the court should enter representation, then the commissioner must delay the bail hearing until such representation cir. 1978), provides an example. that case involved a challenge to the delays in scheduling -30- with a serious offense--and so not within subsection (b)(1)(i)--yet nonetheless face at the mentioning the fiscal practicability of implementation). as judge alan wilner explained, that the arrest was supported by probable cause. in that instance, the commissioner must public defender ("opd") that, should the court affirm the judgment of the circuit court for -5- greene maryland's public defender statute, maryland code (2001, 2008 repl. vol.), §§ 16-101 remain incarcerated for weeks, if not many months, before trial. representation at the initial bail hearing, defendants violated plaintiffs' due process rights." (citation omitted). the crucial question is whether the action is appropriate for declaratory it appropriate to address the question whether res judicata would apply to bar requests for modification of review of sentence or new trial, and appeal." (emphasis added.) we see no criminal adversarial process. indeed, the supreme court has confirmed that "[a] criminal we shall summarize in greater detail, infra, the complex procedural history of this3 greene to effectuate the court's declaratory judgment, and, if so, did the court err, include within its mandate representation at the initial appearance before a commissioner. of the family law article. . . interest in it. still, to our knowledge, we never have suggested that § 16-204(b)(1)(iv) is limited to those (v) a proceeding involving children in need of assistance under § 3-813 not, point to the legislative history as confirmation of the purpose expressed through the rights declared. finally, in answer to the last of the plaintiffs' questions, we hold that the is no cause to delve into its legislative history. the first principle of statutory construction system for the state of maryland in support of their argument that the act was not meant to budget and his desire to be frugal have no relevance whatever in the matter" of whether a as an example, perhaps (if the rules allow) an opd attorney or attorneys could6 an exception to traditional res judicata principles, the exception does not apply where the 25% of detainees on personal recognizance, and lowered bail for onlyone in four individuals battaglia judgment. case no. 24-c-06-229911 each partybefore the circuit court and this court, and the concrete issue presented, we deem as support for that ruling rothgery v. gillespie county, 554 u.s. 191 (2008), which was ___, 26 a.3d at 860. we shall not violate this rule of statutory construction by investigating challenged or denied by an adversary party, who also has or asserts a concrete guarantees of counsel in the representation of indigents . . . in criminal and juvenile question, that the circuit court did not err in declaring the plaintiffs' entitlement to concerns, in their words, "whether bail is a covered `stage' under § 16-204(b)(2) such that in the court of appeals to use its discretion to deny declaratory relief or to: (1) order a 6-to-9-month stay for an (stating that "this court adheres to the `established principle that a court will not decide a ethical representation obligations, including to provide effective assistance of counsel, at representation for indigent persons at "any other proceeding in which confinement under a consideration purposes at initial hearings before commissioners.6 before a commissioner in maryland is an event that marks the beginning of the formal juvenile proceedings before the courts of the state." § 16-201(2) (alteration by the an attorney under title 7 of this article; as the majority opinion makes clear, "our holding applies with equal force to initial3 scarce resources. and the courts, while mindful of the impact of remedies a class action complaint (later amended) seeking injunctive and declaratory relief. they are persuaded to exercise our discretion to urge that a stay of modest duration should have plaintiffs direct our attention to subsections § 16-204(b)(1)(i) and (iv). they claim amendment and article 24 ; and (4) they were denied their right to counsel. the plaintiffs11 (27%)). whenever the commissioner's bail decision is left standing, the defendant will22 were "just for me to make ends meet, to make money for me to be able to get by." id., 846 of rights declares: "that in all criminal prosecutions, every man hath a right . . . to be injunctive relief in the circuit court in the event that the district court defendants and the been, litigated in the earlier action; and (3) there was a valid final judgment on the merits in adkins appearances before commissioners throughout maryland." majority slip op. at 38. ruleandbypractice,thecommissionermayreceive exparterecommendations no. 34 plaintiffs assert, the court would have abused its discretion had it declined to declare their -12- -2- "would then have the option to seek further relief, if necessary, under [c.j.] § 3-412 at a later the upcoming regular legislative session of 2012 will have been completed and any enacted commissioner." (a) in general. ­ . . . a court may grant a declaratory judgment or decree in a in the defendant's incarceration. the only remaining question is whether the bail in which, in the opinion of the court, the complexity of the matter or the youth, inexperience, "reform guidelines"; or (4) delay relief until funding is found. expressly allows further relief based on a declaratory judgment. requested that the injunctive relief be denied; and (3) the plaintiffs seek a premature provides that, "[w]hen counsel is appointed by the public defender or by the court, required"; "protect the safety of the alleged victim"; and "ensure that the defendant will not "critical stage" under the sixth amendment, "is nevertheless a critical stage for the suspect, representation extends to all stages in the proceedings, including but not limited to custody, conditions of release, and direct how the person shall be brought before the judge who issued iii. counsel to indigent accused taken into custody and indigent defendants in criminal and the court had stayed its decision pending appellate review. the denial, therefore, was not on declaratory judgment action additionally sought injunctive relief. the public defender did sweeps more broadly than does the sixth amendment protection. (continued...) capacities as district court commissioners. the parties later agreed that the district court before the district court commissioner. 381 md. at 6, 846 a.2d at 1023. the district court the district court defendants filed another timely notice of appeal to "remove any consideration of the judgment prior to review bythe court of special appeals. the plaintiffs of maryland dewolfe shall be referred to as "public defender," the remaining appellants/cross- -15- be released on recognizance, more likely to have higher and unaffordable bail, and more of that subsection. one of the first opportunities came when we were asked in webster v. the due process clause of the fourteenth amendment to the constitution of the11 initial appearance in the circuit court is not a critical stage of the criminal proceeding for plaintiffs did so, following which the court stated that it would regard the district court that"mostjudicialofficersdecidewhethertoorderrelease onrecognizance or afinancialbail -20- the district court defendants assert that rule 4-214 informs, better than does the onremand,thecircuitcourtconditionallydeniedtheplaintiffs'petition tocertifythe the state's attorney staffs a 24-hour war room in central booking for this maryland appellate decisions involving defendants' statutory right to counsel. see, e.g., baltimorecity;theadministrativecommissionerforbaltimorecity;andthecommissioners the record supports that claim. the plaintiffs attached to their memorandum in7 rules 4-213(a), 4-216. the presence of counsel for that determination surely can be of ] . . . establishment of the district court," and the promulgation of pertinent rules of thedistrictcourtdefendantscontendthatthe actcannotbedivorcedfromitsconstitutional section 3-412 of the maryland uniform declaratory judgments act, codified at16 we have consistently held that enforcement of a clear constitutional or injunctive relief in the future," they could seek that relief in subsequent proceedings by proceeding. id. at 703, 694 a.2d at 467. judicata bar that precludes them from seeking injunctive relief for future violations. the the safety of the alleged victim, another person, or the community, including (i) a criminal or juvenile proceeding in which a defendant or party is 14.06.03.05a and d(2), and quoting with apparent approval the statement in baldwin, 51 the district court defendants rely on the report of joint governor's commission18 paragraph (1) provides for representation in the following proceedings, inter alia:8 plaintiffs were entitled to counsel under the public defender act, noting that the duty of carrying out all of the other duties attendant to the initial appearance, pursuant to rule 4- the cross-appeal. considering this matter's protracted history, the clear positions taken by in effect until a bail review hearing, where most judges defer to a colleague's preset relief. (1) an actual controversy exists between contending parties; a declaration of his rights and status." dart drug corp. v. hechinger co., inc., 272 md. 15, not uncovered any instance in which we have delayed implementation of a substantive right, personal recognizance, with no other conditions of release." md. rule 4-216(a). a remedy in this action would necessitate the appropriation of funds and review of sentence or new trial, and appeal. raise in the cross-appeal. adkins quinton richmond et al. further consideration by a district court judge at a subsequent bail review hearing. see md. app. at 555, 444 a.2d at 1069, that "it goes without saying that reductions in the public ii. requested and the other denying it. the plaintiffs advised the court that they "do not object that the issue was presented directly to the circuit court and is therefore preserved, and they on the due process clause and the public defender act "are well taken." he argued legislative purpose ends. id. at ___, 26 a.3d at 860. moreover, though we may, but need determined that the bail hearing is a stage of a "criminal . . . proceeding" enumerated at the parties filed cross-motions for summary judgment. after a hearing on the the requirements of due process include a right to counsel, with appointed counsel for forth in § 16-204(b), the assertion is suspect. see, e.g., consol. constr. servs., inc. v. individual and agents of the state (whether `formal or informal, in court or out') that amount commissioner did not make an individualized assessment regarding bail and, instead, granting summary judgment in favor of the district court defendants. during the stay, we would expect the opd, in addition to efforts to insure the full execution resolution, which would require this court to render an improper advisory decision. as for 409. we never have held that declaratory judgment is inappropriate because a party may as the opd summarized in its opening brief: -16- such a position.").2 mccarter's purported waiver of his right to a jury trial, without the benefit of counsel. id. res judicata will apply to bar injunctive relief for future violations of the declaratory result; representation of appointed counsel at the bail hearing before a commissioner. as for the -10- to denial of their request for injunctive relief at this time," but they asked the court to include procedure article. see 2008 md. laws ch. 15 § 2. there have been no amendments since public defender or by the court, representation extends to all stages in the judge alan wilner's opinion for the court of special appeals in baldwin v. state, 51 md. reflects the constitutionally-based foundations of the act. that rule provides, in part: the warrant"). the plaintiffs in the subclass alleged that, at each initial appearance, the the adversarial responsibility of the right to counsel." district court commissioners under maryland's public defender act? decree may be granted if necessary or proper. for his defence." the right is applicable to the states through the fourteenth amendment. within the types of cases designated in [former] § 4(b) as calling for the assistance of the a commissioner is defined in maryland as a "judicial officer," see maryland rule1 county, 554 u.s. at 213 (emphasis added).20 court does find that the appearance before a judicial officer, i.e., the commissioner, initiates 4-102(f), but need not be a lawyer, see maryland code (1974, 2006 rep. vol., 2010 supp.), plain language of the act, the stages at which the right to counsel applies. rule 4-214(b) -37- id. at 227 (citations omitted). in sum, indigent defendants are entitled, under § 16-204(b) of the public defender also sought an injunction enjoining the defendants from violating the plaintiffs' right to determine whether the initial appearance is a post-attachment, "critical stage" of the purpose. filed: january 4, 2012 fundamental constitutional right. initial ruling that the court believed it premature to consider entering an injunction because we noted in harris that we had been "persuaded [in webster] by the fact that the policy of on november 13, 2006, the plaintiffs filed in the circuit court for baltimore city and its history. the district court defendants urge that the history supports their argument bills should have been signed into law by the governor (or vetoed). for these reasons, we hold that the circuit court did not err or abuse its discretion establishing the plaintiffs' right to counsel. we have recounted how the plaintiffs, in an is a "stage" of the proceeding; id. at 715-16, 770 a.2d at 201; representation under the public md. rule 1-361(b)(2) (providing for an appearance before a judicial officer, following arrest implementation of our judgment that indigent defendants are entitled to public defender amount."7 when a declaratory judgment action is brought and the controversy is description of where and how the typical initial appearance occurs before commissioners at before this court: (1) the plaintiffs did not properly preserve the claim because it was not -21- recognizance without any additional conditions imposed," then the commissioner "shall discretion in declining to decide the issue of preclusive effect. much less one that affects an indigent defendant's statutory right to public defender constitutes "an obvious error in the application of the principles of equity" and is not entitled for all these reasons, we hold that the bail-hearing portion of the initial appearance a. right to counsel determine, by reference to a number of fact-laden considerations listed in rule 4-216(d), declaratory judgment, defining the rights and obligations of the parties or the maryland or federal guarantees of due process? erich lewis, and nathaniel shivers. court of md., 405 md. 348, 952 a.2d 224 (2008). subsequent to briefing and oral argument, entitlement to public defender representation under either (b)(1)(i), because they have been plaintiffs. legislature's delegation to the counties of the responsibilities in implementing the right to not decide "whether the 6-month delay in appointment of counsel resulted in prejudice to (c)thedefendant'sfamilyties,employmentstatusandhistory,financial that trigger attachment of the sixth amendment right to counsel." rothgery v. gillepsie for an historical perspective on the enactment of the public defender act, see17 representation must be provided at that stage." they answer that question by directing us to proceedings on remand and before this court, has agreed that the plaintiffs have a right to moreover, we have not uncovered any instance in which we have delayed like result to deny the opd's alternative request for a stay (slip op. at 33). office to provide counsel at the appearance before the commissioner, while providing (ii) a criminal or juvenile proceeding in which an attorney is commissioner "typically declines to modify the bail previously set in absentia or to consider commissioner "determines that the defendant should be released other than on personal we join the majority in rejecting this form of relief sought by the opd because of4 amended complaint failed to seek "coercive relief" from the public defender. at a hearing eldridge, john c., then codified at article 27a, entitles an indigent arrestee to appointed counsel at a pre- the sixth amendment and article 21 to be represented byappointed counsel. the court cited rule 4-216(d)(4) further requires the commissioner to "advise the defendant in presented the following questions for review: proceeding is a "stage" of that proceeding, entitling the defendant to public defender (continued...) representation at these proceedings whilestillmeetingitsobligationtoprovide when this action was initiated, the public defender act was codified at maryland2 effective,competent,anddiligentrepresentationtoindigentdefendants,didthe appearance, pursuant to maryland rule 4-213(a). the judicial officer, who in all instances standards performance bythe opd of its pre-existing undertakings, invites application to the attaches."). such as the central booking jail. the plaintiffs then posit that the only remaining question enhanced bythe presence of counsel. see abell pretrial release project report at iii (finding defendants' motion to dismiss as a motion for summary judgment. "all stages," though each provides a different exemplary list, which, as stated in rule 4- "preset" bail issued after a defendant fails to appear in violation of a summons, the by separate order of the same date, the circuit court denied without prejudice the a.2d at 1024. informed the commissioner that he or she could not afford an attorney and requested an would be stayed pending appeal? (iv) any other proceeding in which confinement under a judicial unquestionably, the res judicata issue presented bythe cross-appeal was raised in the circuit to the proceeding, and if: understood in sixth amendment parlance ; (3) the initial bail hearing implicates the10 4. even if no right to counsel exists under issues 1 through 3, do indigent baltimore city commissioners, our holding applies with equal force to initial appearances the commissioner considers a number of factors that are set forth in rule 4-216(d). if the5 with our colleagues who refuse the opd's request for a stay. rather, we would have granted (b) application. ­ an application for further relief shall be by petition contempt proceedings. see flansburg, 345 md. at 700, 700 n.5, 694 a.2d at 465, 465 n.5. "immediately . . . if the court is then in session, or if not, at the next session of the court." the plain language of the subsection itself, which states that representation is to be provided in the court of appeals moreover, the budgetary concerns of the public defender never have played a role in public defender statute." id. at 604, 474 a.2d at 1317. facilitate the appointment of counsel in advance of critical stages of the 5. did the circuit court abuse its discretion by granting the class declaratory judgment, filed in 2007, a report commissioned by the honorable robert m. bell, chief flansburg, 345 md. at 700, 694 a.2d at 465. we noted that probation revocation "responsible representation . . . when it really matters," at trial and other critical stages of turn upon the alleged inability of the defendant fully to meet his obligation to the plaintiffs' concern about the finality of the circuit court's order was based on15 assistance to the defendant in that process. we are informed by the plaintiffs that or under (b)(1)(iv), because they are at risk of possible incarceration in a public institution appropriate for resolution by declaratory judgment, "the court must enter a 213(a), if counsel is not present. what we do mean is that, whenever a person purporting to civil case, if it will serve to terminate the uncertaintyor controversygiving rise -29- subsequently-soughtinjunctivereliefforfutureviolationsof thestatutoryrightdeclaredhere; we can dispose quickly of the district court defendants' first two arguments for a stay of the judgment until 30 june 2012, during which period, the opd, the governor, the5 for execution of the warrant. see md. rule 4-216(j) (providing that "[a] court may issue a proceedings against them. rule4-216(d)(1) requiresthecommissionertoconsider"thefollowinginformation,5 pose a danger to another person or to the community." rule 4-216(d)(3). cases. the public defender estimates that, should the circuit intent that is contrary to the act's plain language. the public defender act, which states that "[r]epresentation shall be provided . . . in all stages for bail from the state's attorney, without any public record of such contact. consideration for the judiciary. we cannot declare that plaintiffs have a statutory right to statute's plain language, we may not undertake a search of a plainly written statute's raised in the circuit court; (2) the plaintiffs are not aggrieved because they themselves the vindication of almost every legal right has an impact on the allocation of -35- the sixth amendment and article 21 of the declaration of rights? him . . . could not be denied such representation in light of the statutory provisions granting practical concerns regarding implementation. that failure, the public defender asserts, the community, and length of residence in this state; employment status, family and community ties, and ability to afford bail." report at iii. caseloads are stretched to­and even beyond in some delay. nevertheless that the court should defer ruling on the merits of the claims, to give him the for the reasons that follow, we answer "yes" to the first question presented by the "[u]nrepresented suspects are more likely to have more perfunctory hearings, less likely to done in webster and flansburg. we restated at the outset what by then was a settled harrell commissioner determines to set bail, the defendant stands a good chance of losing his or her movie "the ten commandments" (1956), who, in the character of pharaoh ramseses ii of time to resolve budgetary constraints that made it impracticable for the public defender's 55, 64 n.12 (2010) (commenting upon but not deciding the legal validity of comar (...continued)14 the court's later revisions." the public defender then filed his own timely renewed notice neighborhood ass'n v. town of easton, 387 md. 468, 487, 876 a.2d 58, 70 (2005) investigations; article 21 of the maryland declaration of rights because the initial bail hearing is an9 -36- action. we cannot in good conscience, however, deny relief to the plaintiffs stageforsixthamendmentpurposes;consequently,theplaintiffshavenorightundertheact on september 30, 2010, the circuit court issued an order and accompanying can be provided or is waived by the defendant. the court then invited the public defender to address his response to the cross- defendants have a due process right to counsel at initial bail hearings when give full and fair consideration to all facts relevant to the bail determination can only be provides for further remedy after the entry of declaratory judgment. the district court24 alleged to have committed a serious offense; criminal proceedings. the hearing ended with the court informing the parties that it intended the supreme court has described "critical stages as proceedings between an10 -19- appeal." the circuit court agreed with the plaintiffs and the public defender that, by its indicate imminent and inevitable litigation; or conflict between rule 4-214(b) and § 16-204(b). both provisions extend representation to raised in connection with implementation of the right to counsel at the initial bail hearing waived his right to counsel. although we decided that the act did not provide for public we granted certiorari to address these important questions. dewolfe v. richmond, 420 md. denial of the injunction, the plaintiffs stated expressly their position that res judicata would motionsforsummaryjudgment. thepublicdefenderarguedthattheplaintiffs'claimsbased was formerly article 27a, § 4(b)(4), now § 16-204(b)(1)(iv) of the act, because those act mandates representation of indigent defendants at the bail-hearing portion of the initial be indigent has not waived public defender representation at the initial appearance, the to refuse to give any weight to these realities, along with the current state of the out-of- before the district court for a bail review hearing after his arrest and initial appearance the defendant's explanation for the [failure to appear]." furthermore, "[t]hat bail remains -6- maryland district court commissioners; the administrative judge of the district court for 899, 908 (2000). the circuit court's denial of the plaintiffs' request for injunctive relief proceedings could result in incarceration. id. at 700 n.5, 700, 694 a.2d at 465 n.5, 465. we occurs as part of the initial appearance before a commissioner. the district court 216(d). "(i) a criminal or juvenile proceeding in which a defendant or party is alleged to have pending such action. public . . . [and are] not transcribed or recorded," "it [is] impossible to review what a in a separate document. that requirement is applicable even if the action is not reasons, we deny the public defender's request that we stay for some period of time injunctive relief. according to the defendants, although declaratory judgment actions are gideon v. wainwright, 372 u.s. 335, 342 (1963). article 21 of the maryland declaration to our institutional integrity as the one requiring the state to provide legal -28- should be deemed to have abandoned their claims for such relief. by order dated december to any deference. a subsequent bail review hearing does not dispel or even mitigate the fact that, whenever a plaintiffs' fundamental right to liberty under the due process clause of the fourteenth on the bench warrant, who "shall determine the person's eligibility for release, establish any rights, but no corresponding duty to craft a remedy for implementation. to the contrary, the defender. court nonetheless erred by declaring the plaintiffs' right to counsel without addressing the commissioner, held pursuant to maryland rules 4-213(a) and 4-216, is a stage of the of the district court in baltimore city, individually and collectively in their official i am reminded of the royal pronouncement uttered by the actor yul brynner in the1 (1) recognition of the declared statutory right of indigent persons to have the effective court's opinion in this case of the cliched metaphor of the "ostrich's head in the sand." opd or whether it is merely unpersuaded to do so. judge adkins and i, on the other hand, delay before the right is implemented. the courts need not officiate over the inevitable september term, 2011 the plaintiffs urge a far different interpretation of § 16-204(b). they argue that, by so let it be written; summary judgment, we determine, if there is no genuine dispute of fact material to the 3. do indigent defendants have a right to counsel at initial bail hearings under we were asked to decide whether an indigent defendant is entitled to representation by the judgment, that is, whether the declaratory judgment would terminate the controversy and earlier memorandum and opinion. (c) show cause order. ­ if the application is sufficient, the court, on is fully in keeping with our prior decisions in webster, flansburg, and mccarter. now § 16-201 of the act)) (alteration in original). battaglia we discussed webster in harris v. state, 344 md. 497, 511-12, 687 a.2d 970, 977, court for baltimore city for further proceedings to flesh-out the remedy, we part company4 comply with the provisions of rule 4-216(d). that subsection of the rule requires the finally,forthereasonswehavestated,wedenythedistrictcourt defendants'motion concerns, lack of personnel for escorts, cramped quarters, and procedural proceedings, such as a preliminary hearing or trial in the district court, and to representation at the bail-hearing portion of the initial appearance before the commissioner. the merits, the district court defendants assert that the circuit court did not abuse its constitutionally required to be present prior to presentment being made 1020 (2003), cert. denied, 543 u.s. 885 (2004). we held in that case that a rule 4-213(c) jj. 33), the otherwise righteous majority opinion turns a deaf ear to the plea of the office of the1 the plaintiffs' request for an injunction to enforce the rights declared. the plaintiffs sought 1. do indigent defendants have a right to counsel at initial bail hearings before statement of charges, if the defendant does not have one and one is available; advise the in so holding, we undertook the same analysis of the public defender act as we had others. we agree . . . also that it is likely that an ultimate, comprehensive madeconcerning anindigentpersonwithoutthepresenceof counsel at anyinitial appearance court judge on bail review. see id. at 32 (finding that, at bail review, district court judges defender's budget and his desire to be frugal have no relevance whatever in the matter"), is not recorded. the plaintiffs report that the event takes place in a "tiny narrow booth" at6 writing or on the record of the conditions of release imposed and of the consequences of a memorandum and opinion, ruling that presentment to a commissioner is a critical stage of harrell concurring and dissenting opinion by harrell, warrant, to determine whether the arrest was supported by probable cause. if the arrest was bail hearing the (albeit unlikely) possibility of a no-bail disposition. it is more than mere conjecture that the plaintiffs will seek future injunctive relief should the defenders never are present" at the initial appearance, notwithstanding that many arrestees before a commissioner. we reject as well the last of the district court defendants' grounds for dismissal of defendants. interrogations, preliminary hearing, pretrial motions and hearings, trial, motions for sixth amendment demands the assistance of counsel: the statute contemplates such finding thatdistrictcourtjudgesinthefive-countysamplegroup (baltimore city, baltimore 671, 399 a.2d 256, 260 (1979) ("[a]n accused with the means to hire counsel to represent we are asked in this appeal whether an indigent defendant is entitled to appointed as that term is defined in the public defender statute, § 16-101 (h)(1)­(4). each plaintiff13 are aggrieved because they never sought the bare denial of their request for injunctive relief. circuit court err in issuing the declaration without in any way addressing further reasoned that a motion to modify a sentence imposed at a probation revocation most recently, we decided mccarter. we considered in that case whether "a declining to consider, and provide a remedy for, the fiscal concerns the public defender providing counsel at initial bail hearings would render the office of the public state, 299 md. 581, 474 a.2d 1305 (1984), to decide, among other issues, whether the act, not have litigated future violations of the declaratory judgment before the judgment was circuit court did not err when it issued declaratory judgment in the plaintiffs' favor without provide representation on a 24-hour-a-day, seven-days-a week paul dewolfe, jr. v. quinton richmond, no. 34, september term 2011. proceedings within the state . . ." but also "to assure effective assistance and continuity of argument,thedistrictcourtdefendantspointtomarylandrule4-214(b),whichtheybelieve article ("c.j.") and maryland rules 4-213(a) and 4-216. the commissioner must inform (iii) a postconviction proceeding for which the defendant has a right to "serious offense" is defined in § 16-101 (h)(1)­(4) as "a felony"; "a misdemeanor13 memoranda and advised them to "assume for the purposes of our understanding that the of § 16-204(b)(1)(iv), because the bail hearing at the initial appearance for the non-serious injunctive relief does not preclude any future requests by the plaintiffs for injunctive relief to dismiss the plaintiffs' cross-appeal, and we hold that res judicata does not bar plaintiffs dissent. several years after mccarter, we decided fenner v. state, 381 md. 1, 846 a.2d19 this case comes to us from the decision of the circuit court for baltimore city the majority finds the prospect of further proceedings in the circuit court to flesh-out the decided after the initial proceedings in the circuit court. the court further ruled that the in criminal proceedings, custody, interrogation, preliminary hearing, arraignment, trial, and significantly from that of the district court defendants. the plaintiffs cite the purposes district court bail review hearing, pursuant to maryland rule 4-216(f).25 28, 2010, the circuit court granted the plaintiffs declaratory relief in conformance with its quotation marks and citations omitted). we reasoned that a rule 4-213(c) initial appearance the applicability of the public defender act to that proceeding, which, we reaffirm today, class and ordered dismissal of the complaint if the public defender was not joined as a in pertinent part: "the pretrial release project: a study of maryland's pretrial release and bail system" maryland code (2001, 2008 repl. vol.), §§ 16-101 through 16-403 of the criminal counsel when a commissioner makes the rule 4-216 bail determination. we hold, for the of the right declared here on or after 30 june 2012, would formulate and carry-out a "best legal representation by the public defender is not limited to those proceedings in which the inmaryland, unless such representation has been waived. it alsofollowsquitenaturallyfrom plaintiffs submitted two proposed orders, one awarding them the injunctive relief they its plain language, the statute dictates the outcome here: indigent defendants are entitled to commissioner may not proceed to the bail determination in the absence of a public defender the initial appearance before a commissioner in baltimore city is not conducted in the plaintiffs noted a timely appeal to the court of special appeals. while the case right. and the public defender has not been able to direct us to any maryland authority for status of the thing in controversy," and that judgment must be in writing and the plaintiffs thereafter formally amended their complaint and filed a renewed (and appellate review. both the public defender and the district court defendants noted timely (b)(1)(i), it follows that indigent defendants charged with "serious offense[s]," as that term thereafter." moreover, notwithstanding that the present case deals only with bail hearings before in § 16-204(b)(2) of the public defender act. because public defender representation is to amended) motion for summary judgment. the amended complaint sought additional proceeding, and, consequently, the trial court erred when it accepted at that proceeding attendant to implementation of that right. and the public defender has not been able to time if defendants were to fail to complywith the declarations after appeals are resolved and opinion. see md. agric. land pres. found. v. claggett, 412 md. 45, 61, 985 a.2d 565, 574- we further hold that the circuit court neither erred nor abused its discretion in injunctive relief had not been decided. the public defender responded to that motion, to assist in understanding the parties' respective arguments and the issues we must decide, (quotation mark omitted))). of the courts article; or but by the judgment of his peers, or by the law of the land." "under certain circumstances, at any bail hearing conducted before a commissioner. we need not and therefore do not simpson, 372 md. 434, 449-52, 813 a.2d 260, 269-71 (2002) and cases discussed therein. and baltimore city bar association's committee for the study of the public defender (b) the defendant's prior record of appearance at court proceedings or prosecutors. they are not informed whether a prosecutor has ex parte contact with a through 16-403 of the criminal procedure article (hereafter "public defender act" or paul dewolfe, jr., et al. "that no man ought to be taken or imprisoned . . . or deprived of his life, liberty or property, -4- of delays in implementation that followed the supreme court's "all due haste" direction in not oppose amending the order to deny injunctive relief outright, noting that the plaintiffs barbera indigent defendants or parties shall be provided representation under this title -2- further, in its replybrief, the opd foresees (and judge adkins and i agree) that the "office's remedy and how this undisputed funding shortfall might be practicably the district court commissioner conducted pursuant to maryland rules 4-213(a)(4) and 4- circuit court for baltimore city relief without prejudice would constitute a final judgment. we merely note, in that regard, declaratory judgment. in light of those stated impediments, and given our holding that the no. 34 an examination of the historical roots of the act's enactment, the "nearly contemporaneous[ initial appearance unless the defendant has been afforded appointed counsel or waived the commissioners in maryland, see state v. smith, 305 md. 489, 501-05, 505 a.2d 511, 517-19, case. to avoid confusion, throughout the opinion we shall refer to the parties by their to an unfunded mandate that served to deprive defendants of their constitutional right to to enforce the right to counsel declared in that judgment. request for relief. we repeat, the plaintiffs' request for an amendment of the court's original in anywaydependent upon the level of appropriations received bythe public defender." id., hurrell-harring v. new york, 930 n.e.2d 217 (n.y. 2010), is to like effect. there, decided in favor of the party seeking the declaratory judgment. an order specifying the terms of any injunctive relief, and he asserted that the plaintiffs the public defender statute `was not only "to provide for the realization of the constitutional extent of duty of appointed counsel. when counsel is appointed by the of particular relevance to this case is what follows if the commissioner determines v. before we close, we address the question raised bythe plaintiffs' cross-appeal, which reasonable notice, shall require any adverse party whose rights have been we therefore hold that the circuit court's denial of the plaintiffs' request for a criminal prosecution and therefore indigent arrestees in baltimore city have a right under other courts have expressed similar sentiments. caswell v. califano, 583 f.2d 9 (1st to issue a written decision. the court granted the parties leave to file post-hearing it is undisputed that the public defender's attorney release provisions of maryland rule 4-216. that rule requires the commissioner to central booking, brought before a commissioner for initial bail hearings, and denied although judge adkins and i concur with the majorityopinion's holdings regarding: the federal and state constitutions and the public defender act, to be represented by the the information may be recorded in a closed envelope for use against them by judges and representation by counsel at the initial bail hearings, presently and in the future." protection principles, that a person with means to obtain his own lawyer has a right to mandate in this case. in addition, the governor and the legislature have a few other matters flansburg, 345 md. at 700 n.4, 694 a.2d at 465 n.4); accord wilson v. state, 284 md. 664, addressed? (h) the danger of the defendant to himself or herself; and (hereafter "abell pretrial release project report"), was released in 2001. it includes the should be dismissed from the case because it was not a proper party. filed: january 4, 2012 (...continued)5 violation of any condition." in addition, "[w]hen bail is required, the judicial officer shall individual in all stages of a proceeding listed in paragraph (1) of this subsection, including, the plaintiffs named as defendants the district court of maryland; the chief judge filed in 2007. he argued that the plaintiffs had "very strong constitutional and statutory motions, at which the circuit court certified the class, the court issued a written order in the sample group maintained prior bail conditions in roughly half the cases, released only


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